Pollak v Masterglass Facades Pty Ltd [2017] NSWCATAP 203

Pollak v Masterglass Facades Pty Ltd [2017] NSWCATAP 203

The Appeal Panel dismissed the appeal because the Senior Member's findings were open on the evidence: the water penetration resulted from the raised external balcony level and breach by the head contractor of AS4654.2, not from defects in the Respondent's design or installation. Although the Respondent was unlicensed and the work uninsured, it was just and equitable under s 94(1A) of the Home Building Act 1989 to permit recovery on a quantum meruit basis, as the Appellant had received the benefit of substantially non-defective work, no measurable resale-value detriment was shown, and the Respondent's non-compliance was associated with its usual commercial work rather than dishonest or...

Jurisdiction
Australia
Judgment Date
20 October 2017
Procedural Posture
Appeal From Consumer and Commercial Division Home Building Proceedings / Appeal Dismissed
Outcome
Appeal dismissed; any stay vacated.
Legal Topics
['unlicensed Contractor' 'uninsured Residential Building Work' 'quantum Meruit Under Section 94(1 A) Home Building Act 1989' 'defective Building Work' 'water Penetration' 'natural Justice']
['home Building' 'residential Building Work' 'administrative Appeals'] ['unlicensed Contractor' 'uninsured Residential Building Work' 'quantum Meruit Under Section 94(1 A) Home Building Act 1989' 'defective Building Work' 'water Penetration' 'natural Justice']

Case Brief

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Procedural Posture

Appeal From Consumer and Commercial Division Home Building Proceedings / Appeal Dismissed

Legal Issues

  1. 1 ["Whether the Senior Member erred in finding that water penetration was caused by work carried out by the head contractor rather than defects in the Respondent's design and installation." 'Whether the Respondent, being unlicensed and uninsured for residential building work, could recover money for the work on a quantum meruit basis under section 94(1A) of the Home Building Act 1989.' 'Whether the Appellant was denied natural justice because the Senior Member awarded relief on a quantum meruit basis.' "Whether the Senior Member erred in assessing the amount recoverable by reference to the Respondent's quotation and proven extras less allowances."]

Ratio Decidendi

The Appeal Panel dismissed the appeal because the Senior Member's findings were open on the evidence: the water penetration resulted from the raised external balcony level and breach by the head contractor of AS4654.2, not from defects in the Respondent's design or installation. Although the Respondent was unlicensed and the work uninsured, it was just and equitable under s 94(1A) of the Home Building Act 1989 to permit recovery on a quantum meruit basis, as the Appellant had received the benefit of substantially non-defective work, no measurable resale-value detriment was shown, and the Respondent's non-compliance was associated with its usual commercial work rather than dishonest or...

Court Disposition

Appeal dismissed; any stay vacated.

Orders

  • ['Appeal dismissed' 'Any stay is vacated']